Fighting back against lawsuits designed to silence speech


Anti-SLAAP statutes in many states can help student journalists who are faced with libel lawsuits filed with the intention of silencing otherwise protected speech.





Lawsuits against the student media are mercifully uncommon. Careful reporting and editing can almost entirely eliminate the possibility of a serious legal threat. But what about the non-serious threats?


Even a lawsuit that lacks substance can still be costly to defend against and hurtful to a media organization’s good name. For those cases, states increasingly are developing a remedy — a way of short-circuiting cases that lack genuine merit — and student journalists in Vermont recently put that remedy to the test.


During fall 2011, students in professor David Mindich’s undergraduate Media and American Politics class at St. Michael’s College in Colchester, Vermont, created a website with online profiles for all of the 2012 presidential candidates. As part of a requirement for the class, two St. Michael’s students, Chris Hardy and Logan Spillane, wrote and posted a profile of John D. Haywood, who was one of 13 candidates campaigning against President Barack Obama for the 2012 Democratic nomination in the New Hampshire primary. Hardy and Spillane spoke to Haywood on the phone, interviewed several of his associates in his home state of North Carolina, read his campaign website, and then wrote and posted their profile.


On July 24, 2012, Haywood sued St. Michael’s College, as well as Hardy and Spillane, for libel, claiming that the online profile contained false statements about him, injured his reputation and reduced his chances of winning the election. Among his many claims was that the students had harmed his reputation by interviewing his Republican associates in North Carolina and making them aware — truthfully — that Haywood had entered the race on the Democratic side. He sought $120,202.15 to reimburse his advertising costs, $1,000,000 in damages for the injury to reputation he suffered in his community, and $50,000,000 in punitive damages. The students and the school, in response, argued that Haywood’s lawsuit arose from their exercise of the right to freedom of speech in connection with a public issue.


The lawsuit was dismissed under a Vermont anti-SLAPP law that protected the students’ speech.1 The Vermont law, which was passed in 2005, provides that “[a] defendant in an action arising from the defendant’s exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances under the United States or Vermont Constitution may file a special motion to strike(.)”2


On Dec. 14, 2012, United States Magistrate Judge John Conroy of the District of Vermont found that the students’ profile of Haywood “was published in a public form, and the publication was in furtherance of the student[s’] right to free speech and involved speech concerning a public issue.”3 Any purported misstatements in the article, the judge ruled, were immaterial or were matters of characterization or emphasis rather than factual falsity. Because the profile was protected by the Vermont anti-SLAPP law, the case was dismissed as frivolous. The ruling was one of the first tests of Vermont’s seven-year-old statute.


A libel lawsuit, or even the threat of a libel lawsuit, can be a powerful deterrent to speech. The risk of having to defend such a suit, or being subject to a damage award as a result of a lawsuit, could very well force a speaker into silence. As the court noted in the Haywood case, in such lawsuits, “[t]he strategy is to file weak claims with the goal of silencing speakers because they fear the expense and travails of litigation.”4


In order to deter suits like the one that student journalists Hardy and Spillane had to defend against, many states have enacted laws to minimize the risk of libel suits silencing otherwise protected speech. These laws, called anti-SLAPP statutes, are intended to protect free speech.


SLAPP stands for Strategic Lawsuit Against Public Participation. The term was coined by Professors George W. Pring and Penelope Canan of the University of Denver, who carried out the first nationwide study of SLAPPs in 1984, when the legal field was just coming to grips with the idea that lawsuits might be misused as a tactic to intimidate journalists and other speakers. By 1996, when Pring and Canan published their book, SLAPPs: Getting Sued For Speaking Out, they “conservatively estimate[d] that thousands of SLAPPs have been filed in the last two decades, tens of thousands of Americans have been SLAPPed, and still more have been muted or silenced by the threat.”5


Pring and Canan used the term SLAPP to describe lawsuits brought to retaliate against those who exercise their First Amendment rights. The acronym aimed “to call attention to these cases in an emphatic way” and “to illuminate simultaneously both their cause and effect.”6 Even though they called SLAPPs a new breed of lawsuits, Pring and Canan found that they have been around since shortly after the American Revolution, when citizens criticized corrupt government officials. SLAPPs were “reborn” in the political activism of the 1960s and 1970s, grew and multiplied in the 1980s, and became a major threat to involved citizens in the 1990s.


The classic SLAPP, according to Pring and Canan, is a lawsuit against someone who speaks out about local development or environmental issues. In recent years, though, the concept has broadened, as practitioners, academics, legislators, and judges across the country have recognized that such lawsuits are an increasingly used weapon against speech that some people and businesses would rather have silenced. Journalists, newspapers, reporters, and broadcasters have all been the victims of SLAPPs. In fact, members of the media are frequent targets of such suits, as they often bring to light information that some would rather keep hidden.7


Pring and Canan defined SLAPPs using four criteria: SLAPP suits “(1) involve communications made to influence a government action or outcome, (2) which result in civil lawsuits (complaints, counterclaims, or cross-claims), (3) filed against non-governmental individuals or groups (4) on a substantive issue of some public interest or social significance.” The reason, they argued, that we should care about such suits is that “they happen when people participate in government, and they effectively reduce future public participation.”8


More often than not, judges dismiss SLAPP suits on the ground that the defendant’s activities are protected by the First Amendment to the Constitution. However, even when a SLAPP plaintiff loses and his case is dismissed, he may achieve the goal of silencing the defendant. The time and monetary expense of the litigation for SLAPP defendants often serves as punishment itself and dissuades individuals from speaking out in the future.


Recognizing such high stakes, and in an effort to support constitutionally protected speech, twenty eight states, the District of Columbia and the U.S. territory of Guam have now enacted anti-SLAPP laws. As of May 2013, these include: Arizona, Arkansas, California, Delaware, District of Columbia, Florida, Guam, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, and Washington state. In addition, although two other states, Colorado and West Virginia, do not have anti-SLAPP statutes, their courts have recognized a defense to lawsuits that target activities aimed at petitioning the government for action on issues of public importance.9


The state of Washington passed the first state anti-SLAPP law in 1989.10 California, which adopted its anti-SLAPP statute in 1993, has been credited with having one of the nation’s strongest anti-SLAPP laws, and has been the model for many other state laws.11 Although the currently existing state anti-SLAPP laws are somewhat inconsistent, they typically provide SLAPP defendants with two main remedies: (1) a way to end the lawsuit at a very early stage, and (2) an award of the defendants’ attorneys’ fees. As one legal commentator explains, “[w]hile anti-SLAPP laws do not guarantee that truthful negative consumer reviews will remain online in response to legal threats, the laws make unhappy plaintiffs think twice about heading to court before trying to squelch socially valuable speech; and when abusive anti-speech lawsuits are brought, anti-SLAPP laws provide some meaningful justice for the victimized defendant.” 12


The existence of the Vermont statute was a difference-maker for St. Michael’s College and for Prof. Mindich’s students. The normal assumption under most state laws is that if the plaintiff (the person who initiates a lawsuit) loses his case, each side must pay its own legal fees. If the defendant (the person responding to the lawsuit) loses the case, then the defendant must pay both sides’ legal bills. This one-sided “loser pays” system recognizes that lawsuits often involve individuals with very little money suing large businesses. A citizen with even a strong case might be deterred from seeking the help of the courts by the risk of paying a big corporation’s crushing legal bill.


Anti-SLAPP statutes change the normal assumptions. A defendant who convinces a judge that the case was a SLAPP — an attempt to discourage the exercise of constitutionally protected rights — is entitled to get his attorney fees paid. In the St. Michael’s case, that amounted to more than $23,000 for the school and its students.


The Vermont students were the latest to benefit from the protection of state laws that disfavor SLAPP lawsuits, but they are not the only student journalists who have successfully invoked such laws to defend themselves when their work was challenged:


A high school editor used Nevada’s anti-SLAPP statute in 2010 when faced with a lawsuit by a music teacher who claimed she was libeled by a news story. The student newspaper at Churchill County High School reported that the teacher, Kathleen Archey, failed to forward some entries to a statewide choir competition as she had promised to do. Archey sued the student editor, as well as school administrators and a professional newspaper that covered the controversy provoked by the student article. In August 2010, a state district-court judge found that the student article was “truthful” and ordered the entire case dismissed.13


A California court relied on that state’s anti-SLAPP law in 1999 to dismiss a lawsuit brought by a San Diego State University police officer, who claimed an article in the student newspaper, The Spartan, defamed him. The article reported on accusations in a police report that the officer had manhandled a student reporter, a charge that the reporter later recanted. Because the article accurately reported the contents of a police report, a California superior court judge ruled that the officer’s lawsuit was a SLAPP and threw it out.14


Two cases about articles published in California high school student media were dismissed as SLAPP cases in 2002. One lawsuit was brought by the parents of two students who shared details of their family problems as part of an article about the consequences of divorce. Another was brought by two students who took issue with a newspaper’s description of a police investigation, in which the students were suspected of making threatening remarks and obtaining instructions about bomb-making. In both cases, state courts found no indication that the articles were factually false or that they invaded privacy, and ordered the losing plaintiffs to pay the defendants’ attorney fees and court costs.15


Although the target was a university and not its student journalists, a 2008 ruling from California offers an interesting application of a state anti-SLAPP statute to protect truthful reporting by campus media.


In that case, a Cornell University graduate sued the university over newly archived back editions of The Cornell Chronicle, a university-owned media outlet that provides information about college events.16 The former student, Kevin Vanginderen, was angry that a recently digitized 1983 edition of the newspaper carried an article implicating him in criminal conduct. Vanginderen had pleaded guilty to one misdemeanor infraction, but the publication ­— relying on police and court records — had referred to more serious theft and burglary accusations that Vanginderen denied. A U.S. district judge in the Southern District of California, where Vanginderen lived and filed suit, decided in June 2008 that the article was substantially accurate and dismissed the case on the basis of California’s anti-SLAPP law.


Still, there are many states that currently offer no protection at all against SLAPP suits. In addition, despite proposals for federal legislation, there is currently no protection at the federal level against being retaliated against for exercising one’s free speech rights. The inconsistency of the state protections and the lack of federal protection led to the American Bar Association’s adoption of the following resolution on August 7, 2012:


RESOLVED, That the American Bar Association encourages federal, state and territorial legislatures to enact legislation to protect individuals and organizations who choose to speak on matters of public concern from meritless litigation designed to suppress such speech, commonly known as SLAPPs (Strategic Lawsuits Against Public Participation).


Because of the disparity in the level of protection offered by the state anti-SLAPP laws, and the lack of such laws in 22 states, student journalists should familiarize themselves with the extent to which they would be protected if ever SLAPPed, like Chris Hardy and Logan Spillane at St. Michael’s College, with a lawsuit arising from the exercise of their First Amendment right to free speech. The Reporters Committee for Freedom of the Press offers a comprehensive guide to state anti-SLAPP laws online.17


Finally, student journalists who believe they are facing a frivolous lawsuit should make sure they have the help of knowledgeable legal counsel familiar with defending defamation claims. Anti-SLAPP statutes are so rarely used (and in many states, so new) that even seasoned lawyers at times are unaware of their existence unless they specalize in media law. College attorneys typically are generalists and not experienced in representing media clients, so students should always consider contacting the Student Press Law Center for consultation with a volunteer media lawyer even if their school offers to provide legal representation.


Attorney Carolyn Shurr Levin, a lecturer at Stony Brook University School of Journalism and LIU Post School of Visual Performing Arts, is a former vice president and general counsel at Newsday and a veteran college newspaper adviser.


Endnotes


1. Daniel Moore, “Rarely used statute in Vermont helps student journalists escape a frivolous libel lawsuit,” SPLC News Flash, available at http://www.splc.org/news/newsflash.asp?id=2510.


2. 12 V.S. A. § 1041.


3. Haywood v. St. Michael’s College, Civ. Action No. 2:12-CV-164, 33 (U.S. Dist. Ct. Dist. Vt. December 14, 2012).


4. Id. at 28.


5. Pring, George W., and Penelope Canan. SLAPPs: Getting Sued for Speaking Out. Philadelphia: Temple Univ. Press 1996 at xi.


6. Id. at 3.


7. Peter Kurdock, “The Need for Federal Anti-SLAPP Legislation,” ABA Section of Litigation, First Amendment and Media Litigation newsletter, March 30, 2011, available at http://apps.americanbar.org/litigation/committees/firstamendment/articles/033011-kurdock-federal-anti-SLAPP.html.


8. Pring and Canan, supra note 5, at 8.


9. Harvard University Berkman Center Digital Media Law Project, Responding to Strategic Lawsuits Against Public Participation (SLAPPs), Feb. 4, 2013, available at http://www.dmlp.org/legal-guide/responding-strategic-lawsuits-against-public-participation-slapps.


10. Wash. Rev. Code § 4.24.500-520.


11. Reporters Committee for Freedom of the Press, “How can I oppose a frivolous lawsuit (anti-SLAPP laws)?”, Digital Journalists’ Law Guide, available at http://www.rcfp.org/node/98913/.


12. Eric Goldman, “We Need Federal Anti-SLAPP Legislation, but Sen. Kyl’s Free Press Act of 2012 Isn’t the Answer (Yet),” Forbes.com, Sept. 24, 2012, available at http://www.forbes.com/sites/ericgoldman/2012/09/24/we-need-federal-anti-slapp-legislation-but-sen-kyls-free-press-act-of-2012?-isnt-the-answer-yet/.


13. Brian Schraum, Judge dismisses teacher’s libel suit against student newspaper, SPLC News Flash, Aug. 12, 2010, available at http://www.splc.org/news/newsflash.asp?id=2124.


14. “Judge dismisses libel suit against reporter,” Student Press Law Center Report, Winter 1999-2000 at 35, available at http://www.splc.org/news/report_detail.asp?edition=3&id=543.


15. “Calif. courts toss out libel claims,” Student Press Law Center Report, Spring 2003 at 41, available at http://www.splc.org/news/report_detail.asp?id=983&edition=24.


16. Kelsey Beltramea, “Libel suit against Cornell newspaper dismissed,” SPLC News Flash, June 4, 2008, available at http://www.splc.org/news/newsflash.asp?id=1764.


17. The Reporters Committee guide is viewable at http://www.rcfp.org/slapp-stick-fighting-frivolous-lawsuits-against-journalists/state-state-guide. The nonprofit Public Participation Project, which advocates for the enactment of anti-SLAPP laws, also publishes a guide at http://www.anti-slapp.org/your-states-free-speech-protection/.


legal analysis, reports, Spring 2013